Thomas Fortune Fay, Leaders In Law Presentation Series

8 November 2018

Thomas Fortune Fay is a distinguished personal injury and terrorism lawyer, having represented victims of terrorism in cases against countries which sponsor it. Fay has helped pave the way for attorneys who wish to collect damages from these countries. In 2012, he worked through Congress to pass legislation allowing plaintiffs to collect in a $1.75 billion case to collect their money in a lawsuit against Iran if they were to win the case, an effort which the Supreme Court later upheld. Fay is a former president of the Trial Lawyers Association of Metropolitan Washington D.C., which awarded him the Trial Lawyer of the Year Award in 2001 for his work in helping Americans sue countries for their support of terrorism.

Affirmative Action on the Hot Seat – Again!

A New York Times article (10/20/2018) shines light on a current lawsuit (“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”), brought by Asian-American students denied admission by the college. Rejected Asian-American students allege that Harvard imposes a quota on Asian-American admissions, and holds these students to a higher admissions standard. Asian-Americans are consistently rated lower on “positive personality traits” which negatively affects their chances of admission.

Harvard itself conducted its own survey on this topic in 2013 entitled “Does Admissions Process Disadvantage Asians?” Their conclusion? Yes, the process did put Asians at a disadvantage.

According to the suit, Harvard is violating the federal civil rights law of 1964 that prohibits discrimination by universities that receive federal funds. Attorney General Jeff Sessions stated: “As a recipient of taxpayer dollars, Harvard has a responsibility to conduct its admission policy without racial discrimination by using meaningful admissions criteria that meet lawful requirements.”

According to the College, “Harvard does not discriminate against applicants from any group, and will continue to vigorously defend the legal right of every college and university to consider race as one factor among many in college admissions….”

Harvard also defends its practices by arguing that eliminating consideration of race would put African-Americans and Hispanics at a disadvantage.

by Kate Lynch

Make Room on that Courtroom Bench!

An October 16 article in the Washington Post describes a new legal service app that makes it possible to sue with a smartphone and claim awards from class action lawsuits.

It’s called “Do Not Pay” and was developed by Joshua Browder, a 21 year old senior at Stanford. Browder describes it this way: “Lawyers say this app isn’t necessary but if your issue is below $10,000, no lawyer is going to help, and if they do they’re going to take 50% of what you make.”

So far, it’s been downloaded about 10,000 times and used, for example, to recoup about $11,000 from the Equifax data breach. The app allows a user to sue for an amount up to $25,000.

by Kate Lynch

Better Check Those School Supplies for Toxic Ingredients

The U.S. Public Interest Research Group Education Fund recently tested 27 common kids’ products and found asbestos in a crayon and benzene in a marker. The article appeared in an August 8 article in the New York Times.

One of the crayons tested – a green Playskool crayon – showed trace amounts of tremolite, which is a form of asbestos. All other crayons tested – Crayola, Up & Up, Cra-Z-Art, Disney Junior Mickey and the Roadster Racers, and RoseArt – tested negative for asbestos.

Benzene, a known carcinogen, was found in six magnetic markers produced by The Board Dudes, which is owned by Mattel. Washable markers from Crayola and Jot nested negative.
The organization also examined three 3-ring binders for phthalates, chemicals that may affect human reproduction and development. Only one, a Jot-brand, 1-inch binder, tested positive.

When contacted, the relevant companies agreed to review claims but maintained that their products currently comply with all safety standards.

by Kate Lynch

Tom Girardi speaks at the museum

Thomas V. Girardi speaks at the Museum

On September 27th famed "Erin Brockovich" attorney Thomas Girardi became the first presenter of the "Leaders in Law Presentation Series".

Do Judicial Nominees Need to be forthright?

The Senate is holding hearing on the confirmation of Brett M. Kavanaugh to the United States Supreme Court. In recent years, hearings on judicial nominations have become elaborate pieces of theater. In this case, it’s Republican Senators lobbing softball questions to the nominee, Democratic Senators protesting the late-night dumping of tens of thousands of documents written to or by Kavanaugh, and the nominee bobbing and weaving and refusing to clarify his thinking about pertinent legal issues.

Meanwhile, various citizen groups have protested that Kavanaugh appears to have a distinctly pro-corporate, anti-individual; anti-environment worldview. Public Citizen notes that “On U.S. Court of Appeals, Kavanaugh Sided With Corporations 87 Percent of the Time in Split Decisions in Key Areas,” and Greenpeace has gone on record as noting that “Kavanaugh Could Do Irreparable Harm to Our Climate and Democracy.” These groups express the well-founded fear that, for the next generation, Kavanaugh could weaken laws which protect individuals (like tort law), and instead, rule as he has in the past, in favor of corporate interests. Given the nominee’s refusal to state his thinking clearly, and his refusal to answer “hypotheticals,” it is difficult to fairly assess his worldview; and determine whether he will an advocate for individuals, or beholden to corporate interests.

Law Question of the Week

Does the American Public have a right to have Judicial Nominees answer questions fully and forthrightly, so that our Senators can assess the Judicial Nominees’ views, before confirming them to lifetime appointments?

Does the American Public have a right to have Judicial Nominees answer questions fully and forthrightly?

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This Week In Torts: A Compendium Of Tort-Related News Ripped From Today’s Headlines!

Who’s Your Daddy?

The New York Times is reporting that Dr. Donald Cline fathered many, many children, while running a fertility clinic in Indianapolis during the 1970’s and 1980’s.

Many couples sought Dr. Cline out at his Indianapolis-area fertility clinic during the 1970s and ’80s. They had children, who grew up and had children of their own.
What the couples did not know was that on an untold number of occasions, Dr. Cline was not using the sperm of anonymous donors.
He was using his own.
Now, Dr. Cline’s former patients and their children are asking enormously consequential questions: How many women did he deceive? How many children did he father? Most perplexingly, why did he do it?

The full, and mystifying, story is here: Zaveri, M., “A Fertility Doctor Used His Sperm on Unwitting Women. Their Children Want Answers,” NY Times, August 30, 2018.

Questions to Ponder:

  • Were these acts – Dr. Cline repeatedly using his own sperm instead of the sperm of anonymous donors – tortious?
  • Who was injured?
  • How?
  • What legal remedy is or should be available?

The Race to the Top

Asian-Americans have sued Harvard, alleging that Harvard discriminates “against Asian-Americans in admissions by imposing a penalty for their high achievement and giving preferences to other racial minorities.”

The Harvard case asserts that the university’s admissions process amounts to an illegal quota system, in which roughly the same percentage of African-Americans, Hispanics, whites and Asian-Americans have been admitted year after year, despite fluctuations in application rates and qualifications.

“It falls afoul of our most basic civil rights principles, and those principles are that your race and your ethnicity should not be something to be used to harm you in life nor help you in life,” said Edward Blum, the president of Students for Fair Admissions, the organization that is suing Harvard.

Hartocollis, A., and Saul, S.  “Affirmative Action Battle Has a New Focus: Asian-Americans“. NY Times, August 2, 2017.

The lawsuit, brought by an anti-affirmative-action group called Students for Fair Admissions, has revived the national debate over race-conscious admissions, which is playing out from colleges down to elementary schools.

The debate goes back to the civil rights movement of the 1950s and ’60s. The assassination of the Rev. Dr. Martin Luther King Jr. in 1968 was a turning point, pushing colleges to redouble their efforts to be more representative of American society.

But Asians were an overlooked minority despite a long history of discrimination. As late as 1976, Harvard did not recognize them as a minority group and barred them from a freshman minority orientation banquet. They had a kind of neither-nor identity, denied both the solidarity of other students of color and the social standing of white people.

Hartocollis, A., Harmon, A.  and Smith, M. “‘Lopping,’ ‘Tips’ and the ‘Z-List’: Bias Lawsuit Explores Harvard’s Admissions Secrets,” NY Times, August 30, 2018.

Following Up

In April, we noted that several families had sued popular radio host, and “right-wing conspiracy theorist” Alex Jones, for his repeated claims that  shooting of schoolchildren in Sandy Hook Connecticut was ‘completely fake’ and a ‘giant hoax’ perpetrated by opponents of the Second Amendment.”  The families of the murdered children sued Alex Jones for defamation.  The tort of defamation is “the offense of injuring a person’s character, fame or reputation by false and malicious statements.”  Black’s Law Dictionary, De Luxe Fourth Ed. (1951).

At the time, we noted that

We will have to see how this lawsuit plays out in court.  There is, after all, a right of free speech in the country, guaranteed in the Bill of rights.  But it is well-established that there are limits to that speech – You can’t falsely yell “Fire!” in a crowded theater, for example.  Did Jones act maliciously? Will he and the staff at Infowars fight this lawsuit, or settle?

Newman, R.  “When Madness Walked the Earth,” April, 2018, Director’s Cut, American Museum of Tort Law.

Well, so far, Jones is fighting. And losing.

On Thursday, a Texas Judge denied Jones’s motion to dismiss the lawsuit.  “’After considering the arguments of counsel and the record, including plaintiffs’ declarations filed on August 2, the court ORDERS that defendants’ motion is in all respects DENIED,’ the court filing said.”  Murdock, S., “Alex Jones Fails To Stop Sandy Hook Parents’ Defamation Case,” Huffington Post, August 30, 2018.  As a result, Jones will have to continue to defend himself against these claims. We will continue to continue to follow up.

Legal Question of the Week

Should Universities continue to consider the race or ethnicity of applicants in determining who to admit to school?

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Drone

Here Comes The Future (Again)

We live in an era when the law is constantly working to keep up with new developments in science, medicine and technology.  And right now, we have a chance to watch the law surrounding drones emerge and evolve.

What do you do when a drone flies over your backyard, maybe while you’re sunbathing, or having a party?  Is it legal for a drone to hover outside your bedroom window? What if there is a camera attached to the drone?

What are the rules here?  What is the law?   What should the law be?

In July, the National Conference of Commissioners for Uniform State Laws, otherwise known as the Uniform Law Commission (ULC), began consideration of “a proposal for changing law across the United States to reflect the impact of unmanned aerial vehicles, or drones.”  Fidler, D., “The Drone Revolution Shakes Up Tort Law,” Council on Foreign Relations, August 14, 2018.  This is part of an attempt “to clarify property and privacy rights amidst proliferation of drones operated by hobbyists, companies, and government agencies.”

It’s an important issue.

Drones have proved fertile in producing legal controversies and calls for new law. Military drones used for targeted killings of terrorists and in armed conflict have generated heated debates under constitutional law, human rights law, and the laws of war. Law enforcement deployment of drones has provoked worries about expanded government surveillance. Aviation authorities around the world are crafting new laws to regulate unmanned aerial vehicles in airspace previously controlled only for manned flight. The rules on small unmanned aircraft systems adopted in 2016 by the Federal Aviation Administration (FAA) intensified legal concerns about how the integration of drones into the U.S. national airspace system would affect property and privacy rights at the local level.

Drones have caused legal and policy ferment because their combination of aviation know-how and digital control, connective, video, and sensor technologies produces capabilities beyond what traditional aircraft provide. These capabilities create new opportunities for recreational, commercial, and governmental purposes. However, taking advantage of these opportunities confronts legal regimes not designed for unmanned aircraft.

This is, in a sense, nothing new:  The law has long adapted to transformative technology, from automobiles to airplanes.  This has been done by cases which have created precedents, by regulations, and legislatively.

And now, it’s the drones turn.

At its heart, this is a dialogue about property rights, and privacy.

[A]viation policy and law never comprehensively addressed how public aviation rights and individual property and privacy rights aligned at lower levels of airspace, essentially below 500 feet above the ground. The FAA’s requirement that small unmanned aircraft fly below 400 feet has made this question acute, especially as commercial interest in exploiting drones more widely expands.

The draft proposal is not without controversy, however.  It contains two key provisions.

First, it contains a “new bright line” rule. Any intrusion—even those that cause no harm—by an unmanned aircraft into airspace above private property up to 200 feet without the owner’s consent constitutes a trespass, with exceptions, including for conduct during emergencies or pursuant to a court order.

Second, the draft act creates the tort of acquiring images, recordings, or physical or electronic impressions of private acts or trade secrets with a drone in a manner highly offensive to a reasonable person, excluding acquisitions protected by the First Amendment or that conform to the Fourth Amendment, a warrant, or court order.

Even if the proposal were to be adopted without change or challenge, there would still be enough ambiguity to keep lawyers in business:  What is acquisition of an image “in a manner highly offensive to a reasonable person?”  What does that mean?  But the proposal will be challenged, and already has generated some controversy.

The proposals provoked criticism, especially from drone companies and industry associations and alliances. Negative reactions included, among others, assertions that the draft act:

  • Interfered with the federal government’s exclusive authority to regulate the nation’s airspace and to pre-empt state and local regulations on drones;
  • Ignored that existing tort law on aerial trespass developed with manned aircraft in mind, which requires a showing of substantial interference with property rights, is very appropriate to apply to drones; and
  • Created new rules on property and privacy rights that will spawn litigation and uncertainty for drone operators and inhibit innovation and development of commercial opportunities.

Right now, this is only a draft proposal, but as the author of the article suggests, it is an important step.

Although only a discussion draft, the proposed act is a significant inflection point in policy and legal debates about drones. State lawmakers, who have been active in regulating drone use, will study this authoritative proposal. The draft act will also influence how executive branch activities, such as the Unmanned Aircraft System Integration Pilot Program, and proposed legislation in Congress, such as the Drone Federalism Act, further integrate drones into national airspace while respecting property and privacy rights.

So, readers, stay tuned.  Over the next several years, this emerging body of law will help shape the rights of drone operators, and the limits of personal privacy.

Brett Kavanaugh and the Starr Report

Brett Kavanaugh has been nominated to replace Justice Anthony Kennedy as a member of the United States Supreme Court. Twenty years ago he served as an attorney working for Kenneth Starr, the independent counsel who investigated a series of scandals during Mr. Clinton’s presidency, and he worked on the report that led the House of Representatives to impeach Mr. Clinton.

On August 15, 1998, while working on that investigation, Kavanaugh wrote a memo to Mr. Starr in which he asserted that he was “strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship – unless before his questioning he either (i) resigns or (ii) confesses perjury and issues a public apology to [Mr. Starr.]” In the memo, Kavanaugh also included sexually explicit questions that he thought should be put to the President.

In support of his thinking, Kavanaugh wrote “the president has disgraced his office, the legal system and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle;” and continued “It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece. . . . Aren’t we failing to fulfill our duty to the American people if we willingly ‘conspire’ with the president in an effort to conceal the true nature of his acts?”

Since then, reports suggest that “Mr. Kavanaugh’s views on the wisdom of criminal investigations of sitting presidents have evolved considerably.” Liptak, A., “Brett Kavanaugh Urged Graphic Questions in Clinton Inquiry,” NY Times, August 20, 2018.

In light of the controversies surrounding President Trump, the memo, and the apparent evolution in Kavanaugh’s thinking are of great interest as both parties prepare for hearing on his nomination to the Supreme Court.

The American Museum of Tort Law is please to offer the complete set of the Starr Report on President Clinton and Lewinsky Affair, with The Starr Evidence, for sale online at Tortmuseum.org. This report may be more timely than ever, in shedding some light on the role that Brett Kavanaugh played in that tumultuous era in our history.

Aliso Canyon gas leak

They Thought That The Law Would Save Them, But…

Public Justice is working on a critical new case, and the facts will alarm you.

Over the course of four months in late 2015 and early 2016, a natural gas well in California released thousands of tons of methane and other chemicals into the air. To put the seriousness of this event into context, consider that the leak resulted in 220 times more methane escaping than in the 2010 Deepwater Horizon disaster.

The well blowout went on for months, causing Governor Jerry Brown to declare a State of Emergency and resulting in 15,000 area residents being forced to evacuate their homes over the course of six months. In fact, the situation was so severe that the Federal Aviation Administration restricted flights over the area out of a fear that planes could ignite fumes from the leak.

There’s no doubt the incident – which single-handedly increased California’s greenhouse gas emission by an astounding 25% – had a major impact on the climate and the residents who were forced to leave their homes for months as the Southern California Gas Company tried – no fewer than 8 times – to “kill” the blowout. But it also had a significant and dire impact on another community, too: The small business owners whose livelihoods were jeopardized by the Gas Company’s irresponsible behavior and inability to fix the crisis they created.

It gets worse:

[M]ore than 400 small businesses (including a daycare center and various non-profits) – allege that negligence by Southern California Gas led to the collapse of the local economy, which naturally impacted our clients significantly. (It turns out that the company actually removed the well’s safety valve and then lied to regulators about having done so for more than three decades.)

So the businesses sued.

Guess what? They lost.

Despite the alarming evidence that this was a disaster that could have been prevented – and despite the economic impact it has had on local businesses – a California appeals court threw out the lawsuit, saying the claims were barred by the economic loss rule, a doctrine that has been colorfully likened to the 1958 B-movie classic The Blob and called an “ever-expanding, all-consuming alien life form” that could “consume much of tort law if left unchecked.”

That doesn’t seem right? Why did they lose?

The court’s decision held that these local small businesses only (yes, only) incurred economic damages – meaning, lost business because residents didn’t want to frequent a neighborhood where the air could literally be lit on fire because of the chemicals floating around – and not property damage or personal injury and, therefore, weren’t owed one penny from Southern California Gas. It didn’t matter, the court held, if their economic losses were a direct, foreseeable result of the company’s gross negligence. It also didn’t matter if the company knew darn well that its negligence could result in the worst methane gas leak in U.S. history.

That still doesn’t seem right. Or fair.

It’s not. That is why Public Justice has taken the case on, in an appeal to the California Supreme Court. The reason is clear, and good. “When a company’s gross negligence seriously injures local businesses relying on a thriving community for their livelihood, the company should compensate the business owners for their losses.”

You can learn more, and read this article on the Public Justice website, publicjustice.net. They are a great outfit, fighting for justice against unfair laws, unjust corporate acts, and wrongdoing that injures real people.

The article, “Public Justice Fights “The Blob” In The California Supreme Court,” can be found here: https://www.publicjustice.net/public-justice-fights-the-blob-in-the-california-supreme-court/